The fallout has continued from the industrial dispute between building company Grocon and the Construction, Forestry, Mining and Energy Union (CFMEU), which culminated in a major blockade in Melbourne’s central business district in August 2012, with the Full Federal Court partially allowing an appeal by the CFMEU against a decision that would have permitted the Fair Work Building Industry Inspectorate (FWBII) to proceed with its civil prosecution of the CFMEU in relation to the blockade (the FWBII Proceedings).

In the first instance decision of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770, Tracey J had held that the relevant ‘double jeopardy’ provisions under the Fair Work Act 2009 (Cth) (FW Act) did not preclude the Court hearing the FWBII Proceedings (which involved allegations that the CFMEU, and the CFMEU officials named as accessories, contravened the General Protection provisions of the FW Act), notwithstanding the fact that the Victorian Court of Appeal was yet to hear an appeal relating to substantially the same conduct in August 2012.

The proceeding referred to was the pending appeal of the decision by Cavanough J of the Victorian Supreme Court in Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 134 (the Contempt Proceedings).  These proceedings were the civil contempt proceedings brought by Grocon against the CFMEU in relation to the blockade at Grocon sites between 28-31 August 2012 and on 5 September 2012.  In the decision, his Honour held that the CFMEU had been ‘convicted and fined … for that criminal contempt’.

The CFMEU argued that section 553 of the FW Act provided that proceedings for a civil penalty (such as the FWBII Proceedings) should be stayed while ‘criminal proceedings’ (the Contempt Proceedings) are being heard, and only resumed if the CFMEU was unsuccessful in its appeal.  Both parties accepted that the purpose of section 553 was to “protect respondents from the need to defend themselves simultaneously against both criminal and civil penalty proceedings arising out of the same conduct and from standing in jeopardy of both criminal and civil penalties for the same or substantially the same conduct.

In the appeal proceedings (Construction, Forestry, Mining and Energy Union v Director of Fair Work Industry Inspectorate [2014] FCAFC 101), the Full Court overturned the first instance decision that section 553 was not engaged, finding instead that the CFMEU’s conviction for criminal contempt were criminal proceedings, despite the fact that the Contempt Proceedings had been brought in the civil jurisdiction of the Supreme Court.  The Full Court held that ‘the fact that different procedures have been adopted for trying contempt charges does not alter the essential characteristic of the proceedings as criminal proceedings’.  Given this, the Court found that the effect of section 553 of the FW Act was that any civil prosecution for pecuniary penalty orders of the same or substantially the same conduct as the Contempt Proceedings must be dismissed.  However, the Court found that the FWBII may seek to resume proceedings in the Court to obtain a pecuniary penalty order if the CFMEU was successful in overturning the Contempt Proceedings on appeal.

However, the Full Court noted that this did not apply to the named individual Respondents in the FWBII Proceedings, and nor did it apply to conduct that was not the subject of the Contempt Proceedings.

While such instances of overlapping ‘criminal’ and civil proceedings have historically been a rare occurrence, this decision is important for the FWBII, as the Full Court’s broader construction of ‘criminal proceedings’ will mean that it will be unable to proceed with legal action where criminal prosecutions for criminal offences are or have been heard.  This may become more relevant in the future, depending upon the findings of the Royal Commission into Trade Union Governance and Corruption, which is due to report on the results of its inquiry by 31 December 2014.

Following the appeal proceedings, the FWBII continued with its prosecution of the CMFEU, with hearings occurring in August 2014.  The Court has ordered that the parties file written submissions, with a further hearing date set down for 8 October 2014.